Mr Recorder Mallins in the Crown Court CO/829/2017 A20160101 Simmonds v Guildford Borough Council - Transcript of proceedings and order
IN THE CROWN COURT A20160101
AT GUILDFORD
Guildford Crown Court Bedford Road, Guildford Surrey. GU1 4ST
Friday 4th November 2016
Before: MR. RECORDER H. J. MALINS CBE (And Justices)
In the matter of the Appeal of: BENN SIMMONDS
MR. A. COLVIN appeared on behalf of the RESPONDENT BENN SIMMONDS appeared in person with McKenzie friend MARK ROSTRON
APPEAL HEARING
Transcript of the DARTS recording by Marten Walsh Cherer, 1st Floor, Quality House, 69 Quality Court, Chancery Lane,London WC2A 1HP. Telephone: 020 7067 2900 Fax: 020 7831 6864
Friday 4th November 2016 (At 10.06 a.m.)
THE CLERK OF THE COURT: Are you Benn Simmonds?
BENN SIMMONDS: Yes, I am.
THE CLERK OF THE COURT: Thank you.
THE RECORDER: Yes. We are dealing with the case of Simmonds, is that right?
MR. COLVIN: We are, your Honour. May it please the court. I appear for Guildford Borough Council, which is the Respondent to this Appeal.
THE RECORDER: Mr. Colvin?
MR. COLVIN: It is indeed, your Honour, yes.
THE RECORDER: Yes. Mr. Simmonds is, I think in person. Is that right.
MR. SIMMONDS: I am, sir. I have an application here for a lay speaker, if you wouldn't mind.
THE RECORDER: Speak up if you've got an application.
MR. SIMMONDS: I have an application for a lay speaker, if you wouldn't mind reading the application, please. (Same handed)
THE RECORDER: Well you can no doubt tell us the nature of your application. We have got one copy of this application.
MR. SIMMONDS: There's three copies.
THE RECORDER: Sorry?
MR. SIMMONDS: There's three copies.
THE RECORDER: There are three copies here, are there?
MR. SIMMONDS: There's three copies available. You have one copy.
THE RECORDER: That's what I meant. There is one copy here, so we will have three copies.
MR. SIMMONDS: Do you want three copies?
THE RECORDER: Yes I do, because my colleagues would like to no doubt have a look at it. (Same handed) Meanwhile I will have a look at this with my colleagues while you are preparing the argument. You are wishing Mr. Mark Rostron to speak on your behalf as a lay speaker. You don't feel confident yourself; well you have spoken very ably so far. (Pause) First of all, what does Mr. Colvin say about this?
MR. COLVIN: Your Honour, I will support any action which the court takes which speeds on the hearing of the appeal.
THE RECORDER: Yes. How long is this likely, do you both think, to increase the length of time that the case takes?
MR. COLVIN: Your Honour, I wouldn't have thought that having is it Mr. Rostron? helping Mr. Simmonds will actually add to the time in court. What the court has got to do though is to work out what the parameters of this appeal are.
THE RECORDER: Yes, of course.
MR. COLVIN: But I wouldn't oppose Mr. Rostron being able to assist Mr. Simmonds in the presentation of his case.
THE RECORDER: Well if you don't think it is going to add time.
MR. COLVIN: No.
THE RECORDER: And obviously there are other issues involved here
MR. COLVIN: Indeed.
THE RECORDER: which we know about, and if you personally don't object on behalf of the Council to his being helped by Mr. Rostron then it doesn't seem to me that we would necessarily object. No, we won't object to that. Very good.
MR. SIMMONDS: Thank you.
THE RECORDER: Now we need to try and find out what actually is going on here, because I believe there is a jurisdiction argument, is there not.
MR. COLVIN: Your Honour, yes.
THE RECORDER: Or a relevance argument.
MR. COLVIN: Indeed.
THE RECORDER: Before we go any further, you all ought to know that we have to rise shortly before halfpast ten
MR. COLVIN: Yes.
THE RECORDER: because other matters are going to take up the court's time for a little while.
MR. COLVIN: Indeed.
THE RECORDER: So I think what I would find it helpful to do at the moment is to get some indication from both of you as to how long this matter could last. You have put in some submissions.
MR. COLVIN: We have.
THE RECORDER: Yes.
MR. COLVIN: Your Honour, we filed some bundles a little while ago with skeletons. I don't know whether those got through to the court.
THE RECORDER: We have seen here a skeleton argument from Guildford Borough Council.
MR. COLVIN: Yes, there were two bundles filed, one with the evidence.
THE RECORDER: Before we go any further: why are you here today? What are you trying to do? If you want Mr. Rostron to speak up for you I don't mind.
MR. SIMMONDS: Yes.
THE RECORDER: What is he doing here? What is this about?
MR. ROSTRON: Your Honour.
THE RECORDER: Speak up. These courts are very big. If you can't shout then we can't hear you and therefore it is no use you being here.
MR. ROSTRON: Thank you, your Honour. The reason Mr. Simmonds is here is because at two previous hearings he applied to Reading Magistrates to object to licence conditions that were put on his hackney carriage.
THE RECORDER: Does he have a licence at the moment?
MR. ROSTRON: He does.
THE RECORDER: Are any conditions attached to it?
MR. ROSTRON: Yes there are, your Honour.
THE RECORDER: What is that?
MR. ROSTRON: That his vehicle should be clad in green livery.
THE RECORDER: Should be liveried.
MR. ROSTRON: Indeed.
THE RECORDER: Is it liveried?
MR. ROSTRON: It is liveried, your Honour.
THE RECORDER: So what is his problem?
MR. ROSTRON: He didn't want it to be liveried.
THE RECORDER: What?
MR. ROSTRON: He didn't want it to be liveried, your Honour, he was forced to have it liveried.
THE RECORDER: Did not the Council take the view and pass a resolution to the effect that all vehicles should be liveried?
MR. ROSTRON: They did indeed, your Honour.
THE RECORDER: Well in that case that is the beginning and the end of it.
MR. ROSTRON: Well I am afraid not, your Honour.
THE RECORDER: I am afraid it is. What is his other point?
MR. ROSTRON: According to the Local Government Miscellaneous Provisions Act any aggrieved person who has standing, which Mr. Simmonds does, can object to a licence condition imposed on his hackney carriage.
THE RECORDER: Well no doubt we will hear from you on this.
MR. ROSTRON: And if I may continue, the Council can only impose licence conditions if they are reasonably necessary, and Mr. Simmons.
THE RECORDER: The fact is he has got a liveried vehicle? He has.
MR. ROSTRON: He has.
THE RECORDER: Which is liveried and he is operating with a licence?
MR. ROSTRON: He is.
THE RECORDER: So he is not disadvantaged at all.
MR. ROSTRON: His position, your Honour, is that he is disadvantaged; it is costing him money, it has cost him extra money, it is costing him money.
THE RECORDER: Is he aware of the sort of level of costs that run in a Crown Court for a day's work or half a day's work? Is he aware of that?
MR. ROSTRON: Well I think he is, your Honour, but you may like to.
THE RECORDER: Are you? Are you aware that a person who loses in the Crown Court may have to pay the costs of the side that wins?
MR. SIMMONDS: Yes.
THE RECORDER: Are you aware that those costs can be substantial? You are. Do you have a time estimate as to how long this case may last?
MR. ROSTRON: Well I would personally guess about four hours, your Honour.
THE RECORDER: No, no question of that. I am telling you now we timetable cases here, and if that is not agreeable to you then there are other venues for you to challenge that point.
MR. ROSTRON: Well.
THE RECORDER: Just a moment. I have had a sufficient look at the papers to be quite content in my mind that the matters could well be canvassed entirely satisfactorily within a maximum period of an hourandahalf, so that is my position and that is what it is. Are you clear on what I have just said?
MR. ROSTRON: Very clear, your Honour.
THE RECORDER: Good. Now so far as you are concerned, when we do get to this issue in a little while, and I don't easily see us concluding it before halfpast ten, when we do get to this in due course we will hear submissions first of all on jurisdiction points. Is that what you say?
MR. COLVIN: It's the right way to do it, your Honour, yes.
THE RECORDER: You understand what is going to happen. There will be some submissions made on behalf of the Council in due course; those submissions will be made by Mr. Colvin. You are I think aware of them, and we will obviously hear those initially when the case is going to start. Do you understand that?
MR. ROSTRON: Yes.
THE RECORDER: Well that's all right. We shall probably allow a total of 10 minutes plus 10 minutes to deal with submissions.
MR. COLVIN: Yes. Your Honour, I can indicate that our evidence is basically the Council went through a twoyear consultation exercise preceding its policy, and applied it.
THE RECORDER: Yes.
MR. COLVIN: So I can deal with the evidence in a matter of a few minutes.
THE RECORDER: Yes, that's all right. You might need to deal with the point that they are trying to raise, which is the issue of, I think, an aggrieved party against a policy decision of that sort, but you may need to deal with that in due course.
MR. COLVIN: I can deal with it right at the beginning; it is very simple.
THE RECORDER: Don't deal with it now.
MR. COLVIN: Okay.
THE RECORDER: Deal with it then.
MR. COLVIN: Certainly.
THE RECORDER: So I suspect we shall come back to this in about fifteen minutes. Thank you very much. (The court adjourned for a short time)
THE RECORDER: Yes. We have already, I think, identified the parties, thank you, and Mr. Mark Rostron it has been agreed will speak on your behalf as a lay speaker, and what we are going to do, having considered all the papers that have been provided to us, is to hear, if you like, a preliminary argument, which is a jurisdictional argument, which is going to possibly, I don't know, it has been set out on paper, deal with the issue of whether, in short, there is anything for you to appeal against or whether we are in the right venue, that sort of issue, nothing to do with what happened on so and so date but really the issue of jurisdiction. That is what we are going to hear first, and it is an argument which is raised by the Council in a document which has been prepared by Mr. Colvin, which I know he will have seen and we have all seen, and I think the best approach for us is to hear from Mr. Colvin now. Thank you.
MR. COLVIN: Your Honour, yes. Thank you so much. I am going to be as quick as I possibly can be. Your Honour, the relevant Act gives Licensing Authorities an express power to require liveries on hackney carriage licences as a condition on those licences.
THE RECORDER: Remind us exactly what a livery is.
MR. COLVIN: A livery is a sign
THE RECORDER: Exactly.
MR. COLVIN: that this is a Guildford licensed hackney carriage.
THE RECORDER: We thought it was a signage issue.
MR. COLVIN: Yes. So if somebody gets into the hackney carriage
THE RECORDER: Quite.
MR. COLVIN: they know exactly what it is they are getting into.
THE RECORDER: So the relevant Act gives the Authority power to require liveries on taxis.
MR. COLVIN: Yes. It is phrased a little bit differently. It actually says "... such design or appearance or bear such distinguishing marks as shall clearly identify it as a hackney carriage." It all amounts to the same thing. Now there are 185 hackney carriages in Guildford and so this Licensing Authority, every Licensing Authority is entitled to have a policy as to how it is going to exercise its statutory power so as to achieve consistency across the trade.
On 9th December the Council, the full Council I might add, adopted a policy, and that followed a twoyear consultation exercise, and if I can just give you a very short sense of the scope of that exercise, there was hard copy and an online questionnaire on the Council's website, there were independently facilitated consultation groups attended by the trade. It was published in the local newspaper and on social media, there was a citizens panel consultation; there was specific consultation of disability groups, there was a newsletter and information leaflets for drivers inviting them to participate; there was a dropin session for drivers and operators, and at the end of all of that there were a number of Council meetings, and at at least two of those meetings members of the trade came and spoke against the proposed draft policy in relation to livery. But at the end of the day there were 488 responses, there were 366 resident responses, and 84% of members of the public said that for reasons of safety there should be a livery policy in Guildford. And so the policy was adopted on 9th December of last year. There is no appeal to the Magistrates' Court against a licensing policy.
THE RECORDER: There is no......
MR. COLVIN: There is no provision for an appeal, and that would be true across the whole field of licensing, whether one is dealing with alcohol licensing, or taxi licensing or any other form of licensing, there is no appeal against the policy. The only way to challenge the policy is to challenge its lawfulness in the High Court by way of judicial review within the strict time limits which are set out for judicial review, and you might I suppose say there was a failure in the consultation exercise or that the policy was irrational, or any of the classic grounds for judicial review.
THE RECORDER: Yes. So it is not possible to appeal to the Magistrates' Court against, in effect, the adoption of a policy.
MR. COLVIN: Correct, correct; and that is all established legal principle. No judicial review application was brought and so the policy stands, and the law is, and it is all set out in my skeleton argument, if you want to appeal against a licence or a condition attached to a licence and bring the matter to the attention of the Magistrates' Court then the court stands in the Local Authority's shoes for the purpose of applying the policy. In other words, it is not open to the court to say: "Well we don't like this policy, it is not a very good policy." The court behaves as the Local Authority in applying the policy, and that again is all established principle.
THE RECORDER: What kind of condition, give me an example, might be thought to be one that could properly be taken by way of appeal to the Magistrates' Court?
MR. COLVIN: Well you can appeal anything you like, I suppose. For example, in the case of a pub there might be a.
THE RECORDER: No, taxis.
MR. COLVIN: Oh, a taxi. Well, for example, take this case. Imagine there were no policy.
THE RECORDER: Yes.
MR. COLVIN: So the Council said: "We really feel that in this case there should be wheelchair accessibility in this taxi" in which event the driver might be able to take the Council to the Appeal Court and say: "Well it is not reasonably necessary in my case because there is adequate provision for disabled taxis in Guildford", and so forth.
THE RECORDER: That would be a condition that would be properly appealable to the Magistrates.
MR. COLVIN: Yes. But if the Council have gone through a long consultation exercise and said: "Now look, we feel that for the purposes of equalities legislation, or for whatever reason, we are going to move towards having wheelchair accessibility" well you could still appeal the condition but it is not going to be a very successful appeal because you are going to run up against the policy. You are going to have to explain to the court why it is that the Council is wrong to have applied its own policy. So you can appeal, but it is a pretty hopeless appeal. You are going to have to find a reason, to use the language of the High Court and the Court of Appeal, why an exception should be made in your individual case, and the test, which has been adumbrated many times in the High Court, is you should only apply an exception to a policy if you can do so without imperilling the policy.
THE RECORDER: But if it was decided after a tremendous amount of discussion, etc.
MR. COLVIN: Yes.
THE RECORDER: that the Council, who shall we say for the sake of argument has got no previous policy
MR. COLVIN: Yes.
THE RECORDER: was going to have a policy, and that policy was that all taxis were going to be liveried.
MR. COLVIN: Yes.
THE RECORDER: That is our policy.
MR. COLVIN: Yes.
THE RECORDER: How different is that from saying: "We are going to have a policy and a condition that taxis will be liveried", and does that mean that the condition can be taken to the Magistrates' Court?
MR. COLVIN: Yes.
THE RECORDER: In that case why can't it be taken to the High Court because we don't approve of the policy?
MR. COLVIN: Well the policy can be challenged in the High Court on the Wednesbury grounds.
THE RECORDER: On Wednesbury.
MR. COLVIN: It is irrational, it is illegal.
THE RECORDER: No reasonable, etc.
MR. COLVIN: All of that. If you don't challenge the policy then what happens is that specifically, in the language of the Act, the District Council is entitled to attach conditions to the licence and then a person aggrieved by the conditions can appeal to the Magistrates' Court, but the attachment of the conditions is decided by the policy. The policy says: "We are going to attach conditions", so when you come to the Magistrates' Court what you are appealing against is the condition, and the Magistrates' Court has to ask itself: was it wrong to attach this condition? And in asking itself was it wrong, the answer is: well no, it wasn't wrong, it is the policy. That's how it works. And, of course, it would have to be thus, because otherwise a Council after two years of consultation can say: "Look, henceforth this is the policy of Guildford, that somebody getting into a cab here is going to have to see that they are getting into a licensed hackney carriage", and then we could have 185 hearings in Magistrates' Courts on different days coming to different results and the policy would fall flat on its face. So of course you can appeal, but you have got a sheer precipice you would have to climb in order to get yourself to the summit in your appeal. That is effectively how the law works, and it is not just for taxis, it is how it works in sex licensing, alcohol licensing, entertainment licensing and so forth; you can apply a policy which explains how you are going to exercise your function.
Can I just give you an example from a different place all together. Imagine there had been glassings of people in licensed premises in Guildford. The Council could adopt a policy that all pubs will have to have toughened glass. The condition would be attached, according to the policy. Well you could appeal against it to the Magistrates' Court, but the Magistrates' Court are going to say: "Well this is the policy. It was adopted after public consultation in order to promote public safety. Where is the beef?"
THE RECORDER: You've got to go to the Divisional.
MR. COLVIN: You've got to go to the Admin Court, or engage in the political process; these councillors are democratically accountable and if they have done something which is really awful which doesn't command public support well you stand for office and try and get it changed.
THE RECORDER: No, no, that is very helpful.
MR. COLVIN: So that's how it works.
THE RECORDER: Yes.
MR. COLVIN: Now what happened in this case was that the Appellant presented to the Council a liveried vehicle, and he got a licence for it on 25th February of this year, and not only did he present it but the Council subsidised the cost of the livery to the tune of315 out of a1,400 cost, because that is what its policy said it was going to do. So he got his licence. He then appealed against the livery condition on his licence and failed because the Magistrates' Court effectively upheld the policy. Meanwhile, however, the licence which he was granted expired on 30th June, so the position we are now in is that he is standing in this court appealing against a condition on a licence which has expired. He then applied to renew his licence. Well, he presented again the vehicle, duly liveried as it had been for many months, and the Council granted him a new licence for his vehicle. There is no appeal against that. So we are in fact today standing determining a wholly academic appeal. There is a car, it is licensed, it is liveried and there is no appeal against the livery condition on the licence which actually exists. Now, where we are today, I think I have probably said almost as much as I need to say, Mr. Simmonds cannot use this court as yet another forum in order to challenge the policy. He can't come to court and say: "I don't like the policy and the reasons weren't good enough for having this policy and it is going to affect me in this or that way". Members of his industry spent two years arguing with the Council about this during the consultation exercise. The court is not a forum to ventilate objections to the policy. The only question is whether he can show you that the Council was wrong to exercise its discretion as it did. Well there is a logical inconsistency there. He would have to say the Council lawfully adopted its policy and was then wrong to apply its policy. It is a logical impossibility in this case, because otherwise the policy is harmed, there would be somebody driving round Guildford as a hackney carriage without the livery which applies to everybody else. So that is the first issue, is what can he bring in here? Well he certainly can't bring in criticisms of the policy; we have had all of that.
The second thing, however, is that he also wants to use this court as a forum to challenge the Council's policy regarding private hire vehicles. As your Honour knows, there is hackney carriages, black cabs to Londoners, that are entitled to rank and be hailed in the street, and then there is private hire vehicles which can only be prebooked, and they are two different streams governed by different sections of the Act. He wants to challenge the Council's policy regarding private hire. Well his two problems to that are you cannot challenge a policy in the Magistrates or the Crown Court, but, secondly, he has not appealed in time against the grant of any specific licence, so he just wants to, I suppose, have a discussion about whether this was a good or a bad policy, though not attached to any car which has been licensed which he has appealed against in time. So that is why I am suggesting that this appeal can be disposed of relatively quickly once you start focusing on the issues which the court is actually entitled to investigate.
THE RECORDER: Good. We will come back to you if needs be.
MR. COLVIN: Thank you.
THE RECORDER: No doubt you would like to respond to the preliminary argument that we have been listening to.
MR. ROSTRON: Yes, your Honour. I think the first thing to say is that Mr. Simmonds's appeal is under the provisions of section 47 of the Local Government Miscellaneous Provisions Act, the part which says "... any aggrieved person"
THE RECORDER: Speak up.
MR. ROSTRON: "Any aggrieved person can object to licence conditions on the grounds that they are not reasonably necessary", and that is what Mr. Simmonds's objection is. He has that right to bring that under Act of Parliament. The Council has made several points regarding the policy of the Council. Mr. Simmonds is not appealing in any shape or form against the policy of Guildford Borough Council.
THE RECORDER: Not appealing against the policy of having a taxi livery?
MR. ROSTRON: No, we are not appealing against any part of their policy. What he says.
THE RECORDER: So he is not appealing against any part of the policy?
MR. ROSTRON: Exactly. What he is saying is
THE RECORDER: But the policy is to have, which was discussed and introduced, etc., etc., a policy was introduced which required taxis to be liveried.
MR. ROSTRON: Yes, he's not
THE RECORDER: You say he is not appealing against any of that.
MR. ROSTRON: No. What the Local Government Miscellaneous Provisions Act gives hackney carriage drivers is a special ability to object to a licence condition. It is regardless of what the Council's policy is, and numerous cases have been heard where hackney carriage drivers and proprietors have objected against livery in the Crown Court and have been successful even though the Local Borough Councils have policies which required livery, because the Crown Courts in those cases found that the Council had made it a condition on their licence which wasn't reasonably necessary. That is the only question that needs asking and answering in this case. The issue of a policy is a complete red herring. In the cases that the Appellants have referred to there is not a single mention of the Local Government Miscellaneous Provisions Act or hackney carriages, they are all about different kinds of licences, where it is agreed that those licences have no grounds to object to the policy of the Council because they are not regulated by the Local Government Miscellaneous Provisions Act. Hackney carriage drivers are. Parliament has given a special ability to appeal against unreasonable and unnecessary licence conditions and Mr. Simmonds's contention is that having his car wrapped in green livery is unreasonable and unnecessary and the Council have never produced one iota of evidence to show that that livery is necessary for any purpose, let alone for public safety, and that is Mr. Simmonds's case.
THE RECORDER: Tell me: you accept, I imagine, but please confirm, that the Authority is entitled to have a policy?
MR. ROSTRON: Yes, it is, your Honour. May I make one caveat. It is entitled to have a policy, but it is not entitled to impose as part of that if a driver objects it is not entitled to impose a licence condition which is not reasonably necessary, so there is a fetter on that policy in the Act of Parliament.
THE RECORDER: And do you accept that on or around 9th December last year the full Council adopted a policy following a twoyear consultation?
MR. ROSTRON: Yes they did, your Honour.
THE RECORDER: Do you accept that?
MR. ROSTRON: Yes, sir, yes we do.
THE RECORDER: And do you accept that that consultation was widespread?
MR. ROSTRON: Yes we do.
THE RECORDER: And the policy was adopted by elected councillors of the Council.
MR. ROSTRON: Sorry, the policies were adopted?
THE RECORDER: The policies were adopted by elected councillors of the Council.
MR. ROSTRON: They were, they were.
THE RECORDER: And that the policy adopted by the Council was that all taxis licensed after December 15 had to be liveried. That was the policy.
MR. ROSTRON: Yes, your Honour.
THE RECORDER: And you accept that Mr. Simmonds presented his vehicle with livery in 2016 and it was so licensed?
MR. ROSTRON: Yes, your Honour.
THE RECORDER: And do you accept that there came a time when he applied to renew his licence?
MR. ROSTRON: Yes, your Honour.
THE RECORDER: And do you accept that there came a time when, in applying to renew his licence, it was renewed because it was liveried, because the vehicle was liveried.
MR. ROSTRON: Against his will he had his vehicle liveried, yes your Honour.
THE RECORDER: But he is still, and was at all material times, licensed in accordance with the Guildford Borough Council policy and is properly licensed and has gone through the motions to become licensed, in accordance with the Guildford Borough Council's policy. Do you accept that?
MR. ROSTRON: Well I think we are dealing with the vehicle licence, your Honour.
THE RECORDER: Sorry?
MR. ROSTRON: I think we are dealing here with the vehicle licence and not Mr. Simmonds's personal licence, I take it.
THE RECORDER: No, no, but do you accept, forgive me, do you accept that he has applied to have the licence renewed, subject obviously to the livery point, and that it has been so renewed?
MR. ROSTRON: Yes, your Honour.
THE RECORDER: Is he complaining that the Council apparently, but I am not clear on this point, is his complaint that he applied for a taxi vehicle licence in January 2016 with a vehicle that wasn't liveried at that time because liveries were not at that stage available and therefore he had to wait until February?
MR. ROSTRON: Well that is a complaint, your Honour, but his complaint is quite simple. He is aggrieved at the licence condition per se, whenever it was sought to be imposed by the Council, and he has applied to the Magistrates' Court in time on both occasions to have his grievance heard, and the reason why we are here today is because that grievance has not been heard properly. So he has a grievance that the licence condition, and he is given this right by Act of Parliament, it doesn't matter what the Council policy says, it doesn't matter whether.
THE RECORDER: What power do you think this court has today?
MR. ROSTRON: You have the power to agree with Mr. Simmonds's objection that the livery of his vehicle in green wrap is not reasonably necessary and that condition should be withdrawn on his vehicle by (inaudible).
THE RECORDER: So you say we have power to say that that condition must be removed.
MR. ROSTRON: You do; I believe you do, your Honour.
THE RECORDER: Well do we, Mr. Colvin?
MR. COLVIN: Yes. The appeal can only be about the condition. It is an appeal under section 47 which allows someone to appeal against the condition, but the condition was imposed pursuant to the policy. That is how the policy comes into effect. It is how it is enforced locally, by the exercise of power to attach the condition. (Pause)
THE RECORDER: We have had section 47, the Local Government Miscellaneous Provisions Act, I think mentioned to us.
MR. COLVIN: Yes.
THE RECORDER: Can you help us on that point?
MR. COLVIN: Yes. Do you want to see it?
THE RECORDER: You can tell us what it says.
MR. COLVIN: Yes. Section 47(1) says "A District Council may attach to the grant of a licence of a hackney carriage" I paraphrase "such conditions as the District Council may consider reasonably necessary", so that is a general power to attach conditions. "(2) Without prejudice to the generality the foregoing subsection: the District Council may require any hackney carriage licensed by them to be of such design or appearance or bear such distinguishing marks as shall clearly identify it as a hackney carriage." Then: "(3) Any person aggrieved by any conditions attached to such a licence may appeal to a Magistrates' Court."
THE RECORDER: Why is he not a person aggrieved by the condition?
MR. COLVIN: Oh, he is aggrieved by the condition, but the condition was applied to the licence pursuant to the policy, that is the important point. The policy explains how the statutory power is going to be exercised, nothing unusual, it is a daily exercise of functions, and the statutory power may say "can attach such conditions as are appropriate, proportionate, necessary, reasonably necessary" the formulations differ across licensing, but then you create a policy which explains how that power is going to be exercised, and that is exactly what happened here. What Mr. Rostron.
THE RECORDER: So you are saying he has got no remedy here?
MR. COLVIN: No, he has got no remedy. I am sorry, and where Mr. Rostron is going wrong, and I hope at some point he will hear this, because it is going to save everybody more and more costs, is what he wants to say is it is all very well for the Council to have a policy, but when we get to the court we mustn't pay any attention to the policy. But the court is the place where the policy is enforced so that otherwise it is just a piece of paper, it is just a vain hope. The policy is translated into action on the ground through the attachment of conditions. That's how it works. So when he says, as he just said, it doesn't matter what the policy says, therein lies his problem: he doesn't like the policy, but he can't come here and say: "I don't like the policy." The condition was attached pursuant to the policy. That is really the beginning and end of it.
THE RECORDER: Anything else you would like to say?
MR. ROSTRON: Yes, if I may, your Honour. This provision was put in the Local Government Miscellaneous Provisions Act by Parliament as a safeguard against Councils by whatever means, by whatever process they use establishing a policy that applied conditions on to hackney carriages, specifically Mr. Simmonds's hackney carriage, that wasn't reasonably necessary. That was a special safeguard put into the Act by Parliament. If it weren't for that Act, that provision, Guildford Borough Council or any Council could say: "Oh, our policy is to have the taxis liveried in chocolate and tied with a pink bow or ribbon", and taxi drivers would have no remedy against that because the Council would say: "Well it's been decided, it is policy; we can do whatever we like." Section 47 of the Act of Parliament protects against Councils doing things which are not reasonably necessary, and that is exactly what we are asking for today, is the protection against that event, which is Mr. Simmonds's taxi being wrapped in green livery. The Council have never shown one iota of evidence, there is nothing in the bundle to dispute the fact that it has never been reasonably necessary, it is of no use to public safety, there are endless reasons why it is (inaudible) and that's why we are here, because we have that right, that protection, otherwise the Council can do what they want, and that's what the Council is seeking to do, kind of a runaway establishment of policy. They may well think it is very good, and they have discussed it themselves and with many people, but at the end of the day they have to show it is reasonably necessary otherwise they can't enforce it on Mr. Simmonds. (Pause)
THE RECORDER: Presumably the livery is specified in the policy?
MR. COLVIN: The livery is specified, it is made by a company that makes these they are wraps, they are vinyl wraps.
THE RECORDER: It is in the policy?
MR. COLVIN: It is all in the policy.
THE RECORDER: I think we will retire to consider the position on this preliminary point.
MR. COLVIN: Thank you. (The court adjourned for a short time)
D E C I S I O N
THE RECORDER: Thank you. The first thing to say is that my colleagues and I are very grateful to all parties who have addressed us today for what they have said and the way in which they have said it. Thank you. So far as this appeal is concerned, we have been listening to a preliminary argument, which is made by Mr. Colvin on behalf of the Council, that this appeal should be dismissed at this stage on, in effect, jurisdictional grounds.
By way of background, we understand, and it is not challenged, that on 9th December 2015 the full Council, consisting of elected Councillors, adopted a policy following a twoyear consultation exercise. That consultation exercise, inter alia, involved websites, consultations with groups, publicity, the use of social media, meetings and the like. The policy specified the requirement for taxis licensed to be liveried. In other words, this was the policy, and we understand that 84% of the public who responded supported the livery policy which was, as we know, adopted. Mr. Colvin tells us, and we accept, that no challenge to the policy can be made other than in the High Court, and none has been made. It is not disputed that Mr. Simmonds presented his vehicle with livery, in accordance with the policy, and it was licensed. Indeed, the Council met part of the cost. And it is not disputed that in due course he applied for the renewal of the licence which, since the vehicle was still liveried, was duly granted. We have had our attention drawn to section 47 of the Local Government Miscellaneous Provisions Act relating to the position of a person aggrieved by a condition. In our judgment, this section is not relevant to the issue of the merits or standing of the policy itself, and our view, expressed earlier, was and is that the issue of livery was in fact the basis of the policy itself; it was the policy. Mr. Simmonds is bringing this appeal on the basis, as has been argued on his behalf, of the issues covered by section 47, namely, the issue involving something, a condition being unreasonable or unnecessary. However, as the livery requirement was in effect the policy it is not for this court to strike down the policy. Section 47 deals with grievances against conditions and not, as we are here dealing with, the issue of the merits of the policy which was properly adopted. Accordingly, our view is that the argument put forward on a preliminary basis by Mr. Colvin, notwithstanding what has been said on behalf of Mr. Simmonds, is a correct argument and at this stage that puts us in a position where this appeal is dismissed.
MR. COLVIN: Your Honour, I am grateful. There is an application for costs in the sum of5,740. Can I hand up the schedules.
THE RECORDER: I think there was an issue about the costs in the lower court.
MR. COLVIN: There was. We applied for costs in the sum of6,123 and we were awarded by the Magistrates4,500, so that is before the court and it may well be that the court wishes to deal with both the appeal and this application for costs compendiously.
Your Honour, in relation to the costs in this court can I just make the following points shortly. The first is that there is an organisation called the Guildford Hackney Association which represents hackney drivers, and they made it clear all the way back to last December that if the Council started applying this policy they were going to challenge this policy, and as it turns out Mr. Rostron is the Secretary of that organisation and Mr. WilliamsWynn, who was going to be one of the witnesses, is the Chair. They put out a public message to raise funds to run this legal case. That is the first thing. The second thing is that the points that we have made to you are exactly the same points as we made to the Magistrates' Court and so we went round these houses once, but, in addition, when this appeal was lodged we took care, before costs started to mount in the Crown Court, to come to the court at the directions stage and say: look, this is a tremendous waste of public and private money, this appeal. We want to set out the argument now, and we did, and I can show you if you want to see it, just in an appeal to Mr. Simmonds to take heed and understand that if he was going to try and pursue this towards a full appeal then he was going to be at risk as to costs, and a Crown Court judge sat where your Honour sits today and said: "Look if he's appealing he has got to be allowed to appeal and the matter will be heard", and Mr. Simmonds went into this with his eyes open. He has had a second bite of the cherry today, he had one bite in front of the Magistrates, a second today, and the result was the result which we predicted when we set it out in our skeleton argument for the Magistrates
THE RECORDER: Presumably the result, obviously the same result today and the same reasoning as in the Magistrates.
MR. COLVIN: Yes, essentially. I think Mr. Simmonds was allowed to say a little bit more about why he didn't like the policy last time, but there was much more consideration last time about what happened in January when the vinyl wrapping wasn't yet available, and we had to justify what we were doing in January.
THE RECORDER: But the essential issue of the policy being X
MR. COLVIN: Yes.
THE RECORDER: livery was the same argument.
MR. COLVIN: It is exactly the same points. So we do say this is misconceived, he knew what he was getting into, he was supported by the trade, which has seen to make this an issue of principle, but the end result of all of this is that if Mr. Simmonds doesn't pay my clients' costs then the people of Guildford will have to pay the costs, and when there is a competition between the people who are actually paying the Council Tax and someone who has brought an appeal which has failed we say the competition should be resolved in favour of the people of Guildford. The last thing I want to say is that just before we came into court Mr. Simmonds handed us a schedule of costs for this court and below in the sum of9,530, which by coincidence is almost exactly the same as the sum of the costs which we have applied for in the Magistrates and here. So I make the application accordingly.
THE RECORDER: Now what is to be said in opposition to that claim for costs?
MR. ROSTRON: Your Honour, firstly I would say that we have several cases from Crown Courts around the country where these matters have been heard under section 47 of the Act, and I would imagine that we will be appealing this to the High Court, so that is the first thing to be said, and obviously we will be appealing the costs as well, because respectfully we disagree with your decision, as we disagreed with the decisions in the Magistrates Court, and hopefully we will get a different result in a different court. As regards the costs I would like to make a few points, if I may. Apparently we were under the impression, through looking at different Council's worksites and their publicly available information, that Magistrates and Crown Courts awarding costs in a licensing appeal should be an exception not a rule and any resident with reasonable grounds for an appeal should not be penalised. Now we say that this is (inaudible) reasonable grounds even though regrettably in this case these grounds have not been adhered to, and that comes from the handbook produced apparently by the Magistrates and Justices Clerks Association. So that is the first point. The second point is that, with the greatest respect to the barrister for the Council, I believe it is the policy of the courts, generally speaking, to allow costs which are proportionate to the matter at hand, and this is a petty licensing dispute which should normally have been settled in the Magistrates' Court with a summary hearing. Because of difficulties with the result it has reached this stage and the costs of the Council (inaudible). What I submit to you is that the costs involved are actually completely disproportionate to the matter at hand and should not be allowed on those grounds. Thirdly, what I would say is that at all times the Council have gone out of their way to advise Mr. Simmonds of the potentially large costs and were in fact using the threat of costs against a relatively impecunious taxi driver as a weapon to prevent him pursing his right by Act of Parliament to complain about the licence condition. So that is the third point, that this is an abuse really of the process of awarding costs by using them as a weapon. Fourthly, the costs awarded on this scale would have the effect in Guildford, and in any other Borough, of preventing any other hackney carriage driver from using their legal right under section 47 of the Local Government Miscellaneous Provisions to complain against a licence condition, because apparently it is not possible to complain against a hackney carriage licence condition, and if you do you are going to get awarded how many thousand pounds against you, several or many thousand pounds against you, so it is a denial of justice basically on that point. Really those are my main points, and I would just summarise and make the last point, your Honour, that under the Human Rights Act public bodies can only make decisions and awards and apply costs against people if they are reasonable and proportionate and in the public interest, and I don't see any way where this level of costs can be reasonably proportionate in a matter that was always supposed to be a summary matter and a licensing dispute and which has now somehow accumulated to several thousand pounds. the final point is, with respect to the learned counsel that the Guildford Borough Council have engaged, they have made no attempt to keep these costs proportionate. Learned counsel apparently charges1,000 an hour plus VAT for his time in court, and there is no necessity for employing a barrister who charges on that level, and so I would ask you to disallow these costs all together, but if you do allow them, cut them down to what would be a reasonable amount of costs bearing in mind Mr. Simmonds is a relatively impecunious private citizen who had good grounds, in my opinion, to bring this action and will continue to bring this action. Thank you.
MR. COLVIN: Can I just assist the court on one or two matters. Your Honour, I think that Mr. Rostron is quoting from a 2005 Home Office Q and A document which doesn't represent government policy any more in relation to the Licensing Act in relation to which it was published. The law about costs was explained by the Lord Chief Justice, Lord Bingham, in the leading case of City of Bradford v. Booth in which he said that the court can make such order to costs as it thinks just and reasonable, and that applies both to principle and quantum. So it is your discretion.
THE RECORDER: Yes.
MR. COLVIN: Secondly, there is no attempt to try and threaten or intimidate with costs. The costs which are claimed for counsel in this case are in accordance with what is known as the Surrey tender rates, so barristers chambers have to tender for work from the Surrey authorities and the best value rates are then accepted by the Surrey authorities and we work according to those rates, and those rates were explained and broken down in the schedule of costs. I would love to say that we are working at1,000 an hour, but as your Honour knows there is a skeleton argument which needs to be produced, there is preparation for the case and then there is the travel and so on and so forth, but it is all in accordance with the accepted rates for these jobs. (Pause)
D E C I S I O N
THE RECORDER: We have listened with care to all the points put to us. We have decided to award costs, as we have been asked to do, but in the sum of4,500, the same I think as the Magistrates' Court; a slightly shorter time spent here. Thank you.
MR. COLVIN: Thank you so much, your Honour. Just to be absolutely clear, you are leaving the costs as they were awarded?
THE RECORDER: No, no, £4,500 for today.
MR. COLVIN: Yes.
THE RECORDER: And we are not changing the Magistrates.
MR. COLVIN: Yes. Thank you so much.
THE RECORDER: We ought to fix a date by which it should be paid. I think I will say three months.
MR. COLVIN: I am very happy with that. As it happens, your Honour, in these licensing appeals it is not the same as the criminal jurisdiction.
THE RECORDER: No.
MR. COLVIN: It is collectable as a civil debt, but obviously we are very happy to indicate that we would take payment in three months.
THE RECORDER: That's the view we take.
MR. COLVIN: Thank you. (1.04 p.m.) I certify that I have faithfully transcribed this part of the proceedings in the Appeal of Benn Simmonds and that the pages numbered 1 to 42 are a true and correct transcript of the said proceedings, to the best of my skill and ability. Member, British Institute Verbatim Reporters
